2 comments

An impressively nuanced video of a very difficult area of law. There are some additional facts in Friscou that might have helped to understand how the court arrived at the “foregone conclusion” holding, starting with the discovery of the computer during a search pursuant to a warrant which the defense did not move to controvert, and the discussion, recorded on a prison telephone, conceding that the computer held evidence the government sought and that she had encrypted it. This meant that the government could prove that the computer at issue was lawfully seized, belonged to the defendant and contained (somewhere on the hard drive) evidence sought by the warrant.

The testimonial act of unencrypting the drive, which was testimonial because it proved that fact that it was her computer and she had knowledge of how to unencrypt it, was already revealed by the telephone conversation. Not only did the government not need to use the testimonial act to prove what it could prove via other sources, but the government in Friscou agreed not to use the fact of her unencryption against her.

These are very difficult, very nuanced cases, and your videos are doing an excellent job of explaining the problem and the law.